Findings Of Fact Rasberry holds Florida Teaching Certificate Number 069503 post-graduate rank II, valid through June 30, 1983, covering the areas of physical education, health education and junior college. At all times pertinent hereto, Rasberry was employed in the public schools of Duval County, at Matthew Gilbert Seventh Grade Center as a physical education teacher. During the summer school session of 1978, at Matthew Gilbert, Rasberry was assigned as teacher for the physical education class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 28 physical education students be enrolled and in attendance. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Mr. James E. Thompson was principal of Matthew Gilbert during the summer school session of 1978. The usual procedure established by Mr. Thompson for the summer school physical education was to assign two teachers to the physical education program with only one of the teachers being responsible for attendance and grade records. Such was the case during summer school 1978. Rasberry was one of two teachers assigned to the physical education program. Mr. Rasberry was excluded from the requirement of reporting attendance and grades because of his other extensive duties. This procedure had the "blessing" of principal Thompson. Rasberry never submitted any paper work regarding the physical education course for summer school 1978. All grade reporting forms and attendance records were prepared and submitted by another instructor who in some cases signed Rasberry's name to the form. However, at no time did Rasberry sign his own name to any of these forms. While the evidence demonstrated that a high number of discrepancies exist in these reporting forms, there is no evidence to establish any connection between Rasberry and the inaccurate attendance data or the award of undeserved grades.
The Issue The issue for consideration in this matter is whether Respondent's certification as a teacher in Florida should be disciplined because of the matters set forth in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner was the official responsible for the certification of teachers and educational professionals in this state. The Respondent was certified as a teacher in Florida by certificate No. 615085, covering the areas of guidance, physical education and health education, and which is valid through June 30, 1993. During the 1990 - 1991 school year, Respondent was employed as a teacher of exceptional education math and social studies at Charles R. Drew Middle School, a school under the administration of the School Board of Dade County. Respondent has taught for between 11 and 12 years and took the course in crisis prevention and intervention offered by the National Crisis Preventon Institute in 1988. In September, October and November, 1991, Respondent was teacing exceptional math and social science to classes of between 4 and 7 students, all of whom were classified as either educable mentally handicapped, learning disabled, or emotionally handicapped. He had neither teaching aides nor assistants. In order to keep the class size small, the instructors in these classes were required to forego their planning period and spend that period in the classroom setting. On or about September 26, 1991, between the 4th and 5th class periods, Respondent was standing out in the hallway of the school, positioned in such a way that he could monitor the students' behavior in the hall as well as in his classroom. He heard a confrontation arise between K.G., a minor male student, and M.B., a minor female student. He went into the room and saw the two students screaming at and hitting each other. Though he told them to quiet down, they did not do so and he stepped in and broke up the fight, sending each student to his/her respective seat. Since their seats were near to each other in the back of the room, he removed K.G. to the front to the room to put as much distance between them as was possible. The two students still continued their verbal assaults on each other regardless of his efforts so he again stepped in and settled them down. Having determined that the argument arose out of M.B.'s accidentally stepping on K.G.'s sore foot, he advised K.G. that hitting was no basis for settling any dispute. K.G. allegedly responded that he hit anyone he wanted at any time. As Respondent subsequently crossed the room, he accidentally bumped K.G's foot which, he claims, K.G. shoved out in front of him. When he did, K.G. came out of his chair, struck Respondent twice in the stomach, and kicked him in the shin. K.G., who was not present to testify, claimed that Respondent intentionally stepped on his foot. This evidence is hearsay and no other direct evidence on the matter was offered. It is found, therefore, that if Respondent did come in contact with K.G.'s foot, the contact was accidental and not intentional. Regardless of the prompting, there is little question that K.G. struck the Respondent in the stomach and when he did, Respondent, applying the techniques for crisis prevention and intervention he had been taught, took K.G. to the floor with his arm behind him and sent another student for security. As a result of this altercation, K.G. was not injured at all but Respondent had to see a doctor for the blows to the stomach and the kick to the shins. He was given two days off from work to recuperate and offered more if he needed it. From that point on, K.G., who within two weeks of the incident, handed Respondent a letter of apology, was one of the best behaved students in the class. In addition, he was one of the two students who gave Respondent a Christmas present that year. He was subsequently removed from Respondent's class and from the school, but that departure was voluntary and had nothing to do with the altercation described above. When the matter was reported to Ms. Annunziata, the school board's Director of Professional Standards, she decided that an administrative review of the incident was sufficient action. The memorandum of understanding between Respondent and the school principal, Ms. Grimsley, regarding the incident, referred him to procedures for handling student discipline and commented on the need to use sound judgement and call school security before a situation escalated into a physical confrontation between the teacher and a student. Less than a month later, on October 15, 1991, Respondent was putting some information on the blackboard during class when another student, A.C. came up and stood beside him close enough to interfere with his work. He moved to another section of the board, and noting that A.C. had a toothpick in his mouth, directed him to resume his seat and remove the toothpick. A.C. did as he was told, but immediately came back up and stood beside the Respondent with another toothpick in his mouth. Again Respondent directed the student to sit down and take the toothpick out of his mouth, and the student did as told. However, he shortly again came up to stand near Respondent at the board with a toothpick in his mouth, so close as to cause concern in Respondent for the safety of his eye. Having already told the student to sit down and remove the toothpick twice without lasting success, Respondent reached over and took the tooth pick out of the student's mouth. A.C. claims that in doing so, Respondent grabbed his lips, but this is doubtful. The other student called to testify about this incident was not clear on details and it is found that while Respondent removed the toothpick from A.C.'s mouth, he did not grab the student's lips. In any case, however, the student reacted violently. Respondent again told the student to sit down but he refused and shouted he was leaving. Respondent asked another student to go for security since there was neither an intercom system nor a workable phone in the room, but no one did. A.C. started out of the room and on his way, veered over to where the Respondent stood and struck him in the rib cage with his elbow. At this Respondent, again using the CPI techniques he had been taught, took A.C. down to the floor and, holding the student's arms behind his back, opened the door and called for help. A teacher from another classroom came into the room and took A.C. to the school office. Shortly thereafter, Ms. Grimsley, the Principal, heard a teacher trying to calm A.C. down after what she was told was an incident with the Respondent. In her discussion with the student he told her that Respondent had hit him in the mouth, thrown him to the floor, and pulled his arm up behind his back. An investigation into this incident was reportedly conducted by the school administration. Thereafter, a conference was held in the Dade County Schools' Office of Professional Standards, attended by Respondent; Ms. Grimsley; Ms. Menendez, Coordinating Principal; the Union representative; and Ms. Annunziata, Director of the Office of Professional Standards, to discuss, inter alia, this alleged battery and Board policies and rules regarding discipline. A copy of the report was given the Respondent and he was afforded an opportunity to respond to the allegations. He denied using intentional restraint on A.C., and when asked why he had not called security, pointed out that all prior efforts to seek security assistance were met with no response. Thereafter, on February 26, 1991, he was administered a letter of reprimand by Ms. Grimsley. This reprimand indicated he had violated the provisions of the teacher contract as well as the School Board Rules and that he was being rated as unacceptable in Category VII, Professional Responsibilities, of the TADS. Neither the memo of the conference nor the letter of reprimand reflect any specific findings of fact regarding the incident. Only the conclusion that Respondent inappropriately disciplined a student is listed as a reason for the reprimand. Respondent accepted the Reprimand on March 1, 1991 without exception. A.C.'s disciplinary record for the months of the pertinent school year prior to the incident in question, maintained by school authorities, reflects that on September 5, 1990, he was the subject of a parent conference because of his general disruptive conduct and his defiance of school authority. On September 19, 1990 he was found guilty of fighting; on October 11, 1990, reprimanded for general disruptive conduct; on October 23, 1990, reprimanded for defiance of school authority; and on October 30, 1990, suspended for the use of provocative language. This is not the picture of a young man who would reasonably feel mistreated by a teacher who stood up to him. Respondent continuously maintains he did not initiate any physical contact with the student nor did he intend to use physical restraint. He made that clear at the conference in early February. Yet he was apparently not believed though the student's disciplinary record would tend to support Respondent's recollection of the incident. Dade County Schools prohibit the use of corporal punishment and allows restraint only for the protection of students or teachers. The application of these guidelines must be effected with common sense and a recognition of the empirics of the situation, however. Under the circumstances Respondent's actions do not appear inappropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Administrative Complaint filed in this matter be dismissed. RECOMMENDED in Tallahassee, Florida this 5th day of June, 1992. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0176 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. 6. First two sentences accepted and incorporated herein. Third sentence rejected as not supported by competent evidence of record. 7. Rejected as argument and contra to the weight of the evidence. 8. Accepted and incorporated herein. Rejected as not supported by competent evidence. In an interview with Mr. Kerr after this incident, as per her testimony at hearing, Ms. Grimsley related that he indicated he asked K.G. what he would do if he, Kerr, stepped on K.G.'s foot. When she indicated she thought to challenge a student like that was an error in judgement, he agreed, but at no time did he indicate he had stepped on K.G.'s foot. & 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. & 15. Accepted and incorporated herein except that the incident was repeated three times before Mr. Kerr removed the toothpick from A.C.'s mouth. Accepted and incorporated herein with the modification that A.C. was standing very close to Respondent at the time the toothpick was removed and was not in his seat. & 18. Accepted in part. The better evidence indicates that A.C. left the room only after assaulting Mr. Kerr by hitting him in the stomach. Accepted and incorporated herein. Accepted and incorporated herein. Accepted in part. An inquiry was made, but only the ultimate conclusion was presented to the Hearing Officer. Neither the report of investigation nor specific findings of fact were presented. Accepted and incorporated herein. Accepted as Ms. Annunziata's opinion. The policy was not introduced into evidence. All cases of physical contact might well not constitute a violation. Accepted. This was not found to have happened, however. For the Respondent: 1. - 4. Accepted and incorporated herein. & 6. Accepted and incorporated herein. Accepted but what was in the Respondent's mind - his purpose - is unknown. Accepted and incorporated herein. Accepted and incorporated herein. - 13. Accepted and incorporated herein. & 15. Accepted. Accepted and incorporated herein. Accepted. A.C.'s partial disciplinary record has been incorporated herein. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 William Du Fresne, Esquire 2929 SW Third Avenue, Suite One Miami, Florida 33129 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Jerry Moore Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 George A. Bowen, Acting Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent's employment as a teacher by the Duval County School Board should be terminated for the reasons specified in the Notice of Termination of Employment Contract dated May 8, 2012.
Findings Of Fact The Duval County School Board is charged with the responsibility to operate, control, and supervise all free public schools within the School District of Duval County, Florida. Mr. Kristopher J. Hunter has been employed by the Duval County School Board as an Exceptional Student Education (ESE) teacher since 2006. He is a certified instructional employee covered by the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended (Tenure Act) and the Collective Bargaining Agreement between Duval Teachers United and the School Board for 2009-2011. At the time of the events at issue in this proceeding, Mr. Hunter was assigned to Arlington Middle School. Mr. Hunter was born in Florida in 1977. He attended college at the University of Virginia, graduating in three years with a degree in Geography. He played professional basketball for about six years. He then returned to school and received a teaching degree from the University of North Florida. He began teaching at Arlington Middle School in the Duval County School District in 2006. He was teaching as an ESE teacher, successfully working with children with a range of cognitive and physical disabilities integrated into the least restrictive environment, that is, the regular school classroom environment. At the beginning of the 2011-2012 school year, Mr. Hunter was assigned to a classroom in the Day Treatment Program (DTP). The DTP is the most restrictive environment offered at Arlington Middle School for ESE students. The program is housed in a separate building at the back of the school, and has five teachers and 22 students. The students assigned to DTP are those with the most severe emotional and behavioral disorders, and Mr. Hunter's previous ESE experience did not include working with students of this type. Although his ESE qualification covered working with these students, Mr. Hunter felt unprepared. The DTP teachers have access to an "intervention room" and four "time out" rooms contained within the intervention room if it becomes necessary to remove a student from their classroom because of a high magnitude disruption. The teacher can call, and staff from the intervention room will respond to help remove the disruptive student. Mr. Gary Mericle is the Site Director for DTP, responsible for the overall administration of the program. He has taught Physical Education for about 12 years and is also the Athletic Director. He is not ESE certified, but has administered the DTP for three years. Mr. Mericle is trained in Professional Crisis Management (PCM), including the use of three techniques designed to gain control of a disruptive student in a safe, efficient, and secure manner to minimize danger to the student and others. The "wrist–triceps" hold is the simplest method to obtain basic physical control over a student; the "Sunday stroll" technique is a bit more secure; while the "bar procedure" is the most difficult to effect, but results in the student being immobilized in a prone position, and so is appropriate for the most violent situations. Each ESE teacher in DTP has a para-professional assistant in their classroom. Ms. Edna Lee is assigned as Mr. Hunter's assistant. Ms. Lee has 14 years of experience in ESE and has been working with the most severely disabled students for the last six or seven years. She has experienced highly disruptive behavior and violence on numerous occasions and has been trained in PCM. R.J. is an ESE student who was transferred into DTP at Arlington prior to the Christmas break. His behavior is erratic and unpredictable. R.J. is calm some days, but at other times he engages in violent behaviors, throwing any items within his reach in a room. Mr. Hunter was aware of these behaviors in R.J., but had never experienced them in his own classroom, although R.J. did "act out" in other ways "every single day." Sometime after the Christmas school break, Mr. Hunter was trained in the PCM techniques described above for the first time. Training for the school personnel had been staggered so that everyone would not be away from their duties at the same time. After his training and before the incident involving R.J. which led to this proceeding, Mr. Hunter had had occasion to use both the "wrist-triceps" and "Sunday stroll" techniques. Mr. Mericle was aware that Mr. Hunter had completed this training and had seen Mr. Hunter employ those tactics to manage disorderly students. In the early afternoon of April 2, 2012, R.J., who had been released from a voluntary "time out" in the intervention room, entered Mr. Hunter's classroom through the door at the lower-right corner1/ of the room. When he entered, Mr. Hunter was seated at his desk in the upper-left corner of the classroom, diagonally across from the door through which R.J. entered. Ms. Lee was seated at her desk in the upper-right corner of the room straight ahead of R.J. In the middle of the room were nine student desks, arrayed roughly in a square formation. Ms. Lee testified that as soon as R.J. entered the room, she could see that he was in an agitated state. Another student may have been in the room when R.J. first entered, but immediately left,2/ leaving only Mr. Hunter, Ms. Lee and R.J. in the classroom. R.J. began walking toward Ms. Lee, going to a computer set up on a table against the right hand wall. When he was unable to sign on at the computer because it was locked, he became even more upset, cursing and kicking the chair. Ms. Lee asked R.J. what was wrong, but he did not respond. He grabbed a fistful of pens or pencils and began to throw them. Mr. Hunter asked him to stop, and when he did not, Mr. Hunter warned him that he would have to call intervention. R.J.'s behavior continued, and Mr. Hunter used his walkie-talkie to call Mr. Mericle in intervention and asked him to come to the classroom. Mr. Mericle immediately responded to the call. There was no physical contact between Mr. Hunter and R.J. prior to the time Mr. Mericle entered the room. When Mr. Mericle entered, R.J. was out of control, throwing pencils, books, and other items. Mr. Hunter and Ms. Lee were still at their desks. After observing R.J. for only a moment, Mr. Mericle concluded that his behavior constituted a high magnitude disruption, and that R.J. needed to be escorted back to intervention. At this time R.J. was moving generally in a counter-clockwise direction around the room, on the outside of the student desks. He had been throwing pencils at the window above Mr. Hunter's desk, and some of these pencils had bounced off the windows and had hit Mr. Hunter. Mr. Mericle had responded alone because they were short-handed in intervention. Mr. Mericle went to Mr. Hunter's desk and asked for his help to restrain R.J. Mr. Mericle had dealt with R.J. before under similar circumstances and believed that R.J. could be restrained fairly easily with the "wrist- triceps" hold, in which two people approach the disruptive student from each side, securing the student's wrist with their outside hand and placing their inside hand on the underside of the student's upper arm. R.J. was of slight build, about five feet, eight inches tall, and weighing about 140 pounds. Mr. Hunter is a big man, about six feet, 10 inches tall, and weighing about 290 pounds. Mr. Mericle believed that R.J. could easily be restrained. R.J. was continuing his counter-clockwise walk around the room, now going down the left side of the room opposite the computers, and turning onto the base wall of the room which contained the door where he had originally entered. As he reached the counter against this base wall, he began to run his arm across the top of it, scraping all of the items that were sitting on the counter off onto the floor. He picked up a soap dispenser and threw it. Mr. Mericle and Mr. Hunter were approaching him from behind, and caught up with him as he was about ten feet away from the wall containing the computers, when R.J. was almost back to the point at which he had first entered the room. Just as Mr. Mericle was about to draw even with R.J. on R.J's left side and was reaching for his left arm, R.J. shot forward at a high rate of speed, slammed into the wall straight in front of him, and then slid down and collapsed to the floor. Ms. Lee testified that Mr. Hunter, who had been approaching R.J. from behind on R.J.'s right side, had raised his right foot and shoved it into R.J.'s lower back, propelling R.J. into the wall. Ms. Lee testified that while R.J. had been propelled into the wall from the push, that she believed R.J. was exaggerating the effect of the push, because the effect on R.J. was overdone, like "bad acting." Mr. Hunter then quickly followed R.J., picked him up off the floor by his shirt or shoulders, lifted him completely off of the floor, shook him, and slammed his back against the wall with R.J.'s face held above Mr. Hunter's head. Mr. Mericle said that he heard R.J.'s head hit the wall behind him. Ms. Lee stated that Mr. Hunter said to R.J. in a loud voice, "You can't come in my room doing this." When Mr. Hunter released him, R.J. dropped to the floor, and then got up and left the room. Mr. Mericle went after R.J., saying, "I've got him, I've got him." Ms. Lee testified that she found Mr. Hunter's actions to be "very shocking." Mr. Mericle followed R.J., who went to the front of the school. The School Resource Officer (SRO) was there and Mr. Mericle told the SRO what had happened before continuing his pursuit. Mr. Mericle caught up with R.J. on the softball field. He asked R.J. to return to the DTP building with him. R.J. went calmly, without any use of PCM. R.J. was subsequently transported by Jacksonville Fire Rescue to Shands Medical Center. There was no evidence at hearing of any serious injury. Mr. Hunter's version of events was slightly different. He testified that he stuck his foot out and that R.J. tripped. He stated that R.J. was holding a pencil like a knife in a threatening manner, and that this was the reason Mr. Hunter then grabbed R.J. and lifted him up against the wall. Mr. Hunter said that R.J. calmed down when he was lifted off of the floor and that Mr. Hunter then lowered R.J. back to the floor. Mr. Hunter testified that he never intended to harm R.J. and that he was just trying to get control of the situation. Mr. Hunter testified that R.J. could have hurt anyone in the room or even himself. Mr. Hunter admitted that his actions, even as he had described them, were not appropriate. Ms. Lee was a credible witness whose demeanor suggested that she did not wish to cause Mr. Hunter trouble. She relayed the facts as she saw them, while giving every benefit to Mr. Hunter in her own interpretation of those facts. Her testimony that Mr. Hunter kicked R.J. into the wall is credited. Ms. Lee's conclusion that Mr. Hunter "didn't lose control, but was only trying to get R.J.'s attention" seems quite charitable, however. In any event, it is not acceptable to kick students or lift them off the ground and slam them against a wall to "get their attention." Mr. Hunter's suggestion that his actions were motivated in part by defensive or safety concerns because R.J. was wielding a pencil is discredited. Neither Ms. Lee nor Mr. Mericle, both of whom were closely watching R.J., saw a pencil displayed in a threatening manner. Even if a pencil had been wielded as a weapon, the response was completely inappropriate. At all relevant times during this incident, there were three PCM trained adults in the room with a single ESE middle school student. Mr. Hunter did not cooperate with Mr. Mericle's efforts to use approved techniques. Shoving a student or picking him up and slamming him against a wall are inconsistent with the sanctioned procedures designed to defuse high magnitude disruptions in a safe and secure fashion. Mr. Hunter, provoked by R.J.'s behaviors, used physical force against R.J. in frustration and anger. Mr. Hunter did not intend to physically hurt R.J., but acted inappropriately to get R.J. under control. Ms. Sonita Young is the Chief Human Resources Officer for Duval County Schools. In determining the appropriate action to recommend to the Superintendent in this case, Ms. Young considered the progressive discipline policy reflected in the Collective Bargaining Agreement. Ms. Young testified that she discussed the matter with others, and that she concluded that termination was appropriate even though Mr. Hunter had not had the various steps of progressive discipline imposed on him earlier, because of the severe behavior in this incident. On May 8, 2012, a Notice of Termination of Employment Contract and Immediate Suspension Without Pay was sent to Mr. Hunter. On May 9, 2012, Mr. Hunter was arrested on felony child abuse charges based on the incident. Subsequently, on or about June 15, 2012, Mr. Hunter voluntarily entered and was accepted into a pretrial diversionary program in regard to his May 9, 2012, arrest. Prior to the incident described in the May 8, 2012, termination letter, Mr. Hunter had been informed and was aware that Duval County School Board policies prohibited the conduct described therein. Prior to the incident described in the May 8, 2012, termination letter, Mr. Hunter had been informed and was aware that the State Educator's Code of Ethics and Principles of Professional Conduct of the Education Profession prohibited the conduct described therein. Respondent's demonstrated inability to follow prescribed protocols and his resort to physical force in dealing with an ESE student in frustration and anger impairs his effectiveness in the school system. Respondent's misconduct in office constitutes just cause to terminate his employment as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Duval County School Board enter a final order terminating the employment contract of Kristopher J. Hunter as a teacher. DONE AND ENTERED this 3rd day of October, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2012.
The Issue The issues in the case are whether Respondent committed the offenses enumerated in the Administrative Complaint filed by Petitioner and, if so, what penalty should be imposed against the Respondent.
Findings Of Fact Respondent holds a valid Florida Educator’s Certificate No. 514964, covering the area of elementary education, which is valid through June 30, 2007. At all times material to this case, Respondent was employed as a teacher at Moton Elementary School in the Hernando County School District. She is admired and respected within Moton Elementary and is considered by her principal to be an excellent teacher. Her performance evaluations consistently reflect that she exceeds expected performances levels in every category. Her honesty and integrity are unquestioned. Respondent is viewed as the quintessential teacher who teaches simply because she loves working with children, watching them learn and grow. Students in the State of Florida are administered a standardized test known as the FCAT. A portion of that test is known as the norm referenced test, or NRT. The NRT is used to compare students in Florida with the achievement of students in other states. It can also be used, as a secondary tool, in the placement of individual students. Teachers are forbidden to give direct assistance to students on the FCAT and the NRT portion of the FCAT, although they can give general encouragement to a group of students. Respondent’s practice, during normal testing in the course of the school year, is to circulate throughout the classroom. If she sees a student that has incorrectly dealt with a problem, she will direct the student to review the problem, and to think about the answer. Respondent was trained in how to administer the FCAT, including the NRT portion. Specifically, she was told she was not to give assistance to students as they were taking the test. On the afternoon of the day in March of 2002 when concerns were raised about Respondent having assisted at least three students on the NRT portion of the exam, Principal Donnie Moen summoned Respondent to his office to ask her if anything unusual had happened during the test. Respondent told him nothing unusual had happened. Later that evening, Respondent wondered out loud to her husband whether she had provided any assistance during the test. The next day, Respondent got the class together and asked the students whether she had provided any directions or assistance on any specific questions. Three students raised their hands and told Respondent she had provided assistance on a specific question. Respondent then realized and now concedes that during the test, while circulating throughout the class, she told K.M. to check her answer to a certain question; told S.H. to go back to a certain question she had skipped over and check the answers to the questions that followed; and told F.M. he needed to check the aquarium problem. When she realized she had given these students assistance on specific questions, she told the students she had to go to the principal to report what she had done. The students asked whether she would get in trouble. She reminded the students she had always thought that honesty was the best policy, no matter what happened. Respondent then reported to the principal to tell him she had provided some assistance to three different students on specific questions. While Respondent avows she did not intentionally provide assistance to any students, Respondent did fail to distinguish between normal classroom testing procedures and standardized testing procedures. Respondent’s effectiveness as a teacher has not been diminished by her actions. She continues to enjoy widespread support from staff, parents and school administration, although, as a result of the incidents in the NRT portion of the FCAT, Respondent accepted a "last chance agreement" with the local school district. Part of that agreement was a 10-working day suspension without pay, and probation for a period of one year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order retroactively suspending Respondent's certificate for a 10-working day period, coupled with probation for a period of one year. Such recommended penalty should run concurrently with discipline imposed by the Hernando County School District upon Respondent in April of 2002. DONE AND ENTERED this 29th day of July, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2003. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Bruce Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue Whether just cause exists for the Petitioner's proposed non-renewal of the professional services contract under which the Respondent is employed.
Findings Of Fact From school year 1987-88 to school year 1990-91, and at all times material to this case, Respondent Aaron Ellis was employed as a guidance counselor by the School Board of Hendry County pursuant to a professional service contract. The professional services contract under which the Respondent was employed specifically provides that the Respondent may not be dismissed except for just cause as provided in Section 231.36(1)(a), Florida Statutes. Richard K. Shearer has been the Principal at Westside Elementary School since July 1989. At the time Shearer was assigned to Westside, the Respondent was on staff as a guidance counselor, but did not have regular classroom duties and was to respond to referrals from teachers of troubled students. Between August 7 and December 12, 1989, the Respondent placed 44 long distance telephone calls from his school office telephone. The calls, totaling 64.81 in tolls, were not school related. Westside Elementary School's Teacher Handbook specifically provides that long distance calls made from and charged to the school should be school related, and that permission must be obtained prior to such calls being made. On January 23, 1990, Principal Shearer discussed the inappropriate telephone use with the Respondent and informed him that reimbursement was required. Prior to this conversation, the Respondent had made no attempt to reimburse the school for the cost of the calls. By letter of January 26, 1990, Principal Shearer confirmed the conversation and stated that reimbursement was required by February 9, 1990. The letter, a copy of which was placed in the Respondent's personnel file, further states that, "[i]n the future, all long distance calls must be directly related to Westside Elementary school students, and must be logged completely and accurately with specific information as to who was called, what student it was in reference to, and the reason for the call." On April 4, 1990, Principal Shearer completed a guidance assessment form which set forth the Respondent's professional evaluation and performance ratings. Mr. Shearer discussed the evaluation with the Respondent who refused to sign the evaluation, but instead filed a separate response. Prior to completing the form, Mr. Shearer had observed the Respondent on an informal basis at least three times and had performed one documented formal observation. He also observed the Respondent in casual meetings with numerous students. In the evaluation, Mr. Shearer noted that the Respondent required improvement in the areas of "utilization of time", "interpersonal relationships", and "routine office procedures". The Respondent's overall performance rating was unsatisfactory. The comments section provided that: Mr. Ellis has some excellent qualities in the way he communicates with students. He also has some glaring weaknesses in making the most effective use of school time, in relating to fellow staff members including those in authority over him, in following generally understood office procedures. Improvement is necessary in these areas during the 1990-91 school years. Attached to the guidance assessment form were "notices of desired improvement" identifying the improvements expected of the Respondent. The notices provided additional information related to the Respondent's performance deficiencies and indicated that if improvements were unsatisfactory, the Respondent's employment contract could be non-renewed. Mr. Shearer was concern that the Respondent did not follow through on referrals by teachers of troubled students. He also believed the Respondent to be difficult to talk to and was somewhat distant from other staff. As to desired improvements in interpersonal relationships, the notice of desired improvement provided: Mr. Ellis does not work as effectively with other staff members as might be possible or desirable. He seems to have trouble or resent answering to those in authority over him.... Mr. Ellis needs to stay in closer contact with teachers and administrators as together they decide on strategies to help students needing counseling or referrals for possible E.S.E. staffing....Staff or small group meetings will be set up upon request to discuss staff relations and counseling procedures. Expectations of the Counselor will be fully discussed at the beginning of the new school year....Better staff relations will hopefully develop by the end of the 1990-91 school year. Mr. Shearer believed that the Respondent failed to spend adequate time assisting referred students. As to desired improvements in utilization of time, the notice of desired improvement provided: Mr. Ellis does not use his time as efficiently or as effectively as he might during the school day....Mr. Ellis needs to show more initiative in scheduling his time appropriately during the school day....Schedules may be provided or developed and/or a classroom assigned to help him achieve more contact with students in need of counseling. A log of counseling sessions may be put to use....Improvements are expected during the 1990-91 school year. Mr. Shearer was sometimes unable to locate the Respondent on-campus, sometimes due to the Respondent's alleged illness (notice of which was not timely provided), other times because the Respondent would leave the Westside Elementary campus or would walk to another school located on the same property with Westside. As to desired improvements in routine office procedures, the notice of desired improvement provided: Mr. Ellis does not follow normally accepted office procedures. He does not always call in when he is to be out for the day, does not discuss extended absences with his supervisor, misses too much time from work, and has had a problem with unauthorized long distance phone calls....Mr. Ellis will conform to normal office procedures that are expected of all staff members.... A full explanation of what is expected of Mr. Ellis will be given by the Principal during the week of pre-planning....These problems should be corrected immediately, but for certain by the end of the 1990-91 school year. By memorandum of April 19, 1990, the Respondent replied to Principal Shearer's April 4th assessment. The Respondent stated that he believed he worked effectively with other staff members and did not have trouble in working or answering to those in authority. He noted that there were no complaints from teachers related to him and that he had never refused to perform assigned tasks. He wrote that he believed his time to have been utilized efficiently, that he had not been made aware of any related problems prior to the evaluation, and that he was amenable to suggestions related to more effective use of time. The Respondent insisted that he followed routine office procedures, although he acknowledged one instance of absence without notifying superiors. He noted that the matter of the inappropriate telephone calls had been handled through the letter of January 26, 1990 (a copy of which had been placed in the Respondent's personnel file) and through the reimbursement for such calls. He concluded, "I believe that your formal assessment of my performance should have, for reasons cited above, rated me as "satisfactory" in all areas. I will, however, do all you find necessary in order to demonstrate my better-than-satisfactory performance as a counselor at Westside Elementary School." By letter dated April 20, 1990, Hendry County School Superintendent William C. Burke informed the Respondent that due to the Principal Shearer's assessment and evaluation, he was being charged with unsatisfactory performance for the 1989-90 school year. The letter stated, "As provided in F.S. 231.36, you may request to meet with me or my designee for an informal review of the determination of unsatisfactory performance and/or request an opportunity to be considered for a transfer to another appropriate position, with a different supervising administrator, for the 1990-91 school year." The letter also stated that during the 1990-91 school year, the Respondent would "be provided assistance and inservice training opportunities to help correct the noted deficiencies" and that he would "be evaluated periodically to keep you apprised of progress." Although Principal Shearer was available to offer assistance or additional information related to the performance deficiencies, the Respondent demonstrated no interest in taking advantage of the available assistance, apparently because he did not agree with the evaluation. There is no evidence that the Respondent requested transfer to another position with a different supervising administrator. Thereafter, Mr. Shearer determined it necessary to provide a structured setting for the Respondent to perform his responsibilities. By letter dated June 21, 1990, Principal Shearer provided and outline of the guidance program he expected the Respondent to implement during the 1990-91 school year. The Respondent was assigned a permanent classroom for the school year which was designated as the "time-out or in-school suspension room" which was a part of the school's discipline program. "Disruptive" and "disinterested" students were to be referred to the Respondent's classroom. Such students would "benefit from more direct contact with the Guidance Counselor than we have been able to give in the past years." The Respondent was assigned three tasks related to the permanent classroom setting. He was to develop and maintain a record-keeping system for each child that included basic information, the reason for the referral to time- out, and "any notes on types of counseling or any progress made...." He was to "supervise and hopefully motivate students to keep up with their classwork while in time-out." Finally, he was to "use whatever opportunities that arise, individually or collectively, to counsel with students about the feelings or attitudes that led to their disruptive behavior or lack or (sic) classroom performance and ways to deal more appropriately with these feelings." The June 21 letter provided that the Respondent would "have a good deal of autonomy within your classroom, but it should be understood...that this is not a 'reward' or play time, or something to be looked forward to. The students will have no 'special area' privileges while in your room....The idea is total isolation from other students until dismissal time." The letter indicated that this job description was unusual for a school counselor, but that the program would permit the Respondent to have "much more direct contact with students who are having trouble succeeding in school." Concluding, the principal wrote that the plans were "subject to fine-tuning" as the year progressed, and that he welcomed the Respondent's input in the program. A memorandum from the principal went to all Westside Elementary teachers on or about August 22, 1990 which provided information on the Respondent's "time-out" classroom. The information in the memorandum was essentially similar to that in the June 21 letter to the Respondent. Between August 6 and August 17, 1990, the Respondent placed 7 long distance telephone calls from his school office telephone. The calls, totaling $17.25 in tolls, were not school related. By letter to the Respondent dated October 11, 1990, Principal Shearer wrote that, "...once again, in spite of my clear instructions to the contrary, you have charged personal telephone calls on our school telephone." The letter stated that "NO MORE personal calls are to be charged, by you, to our school phone! This is not a service available to you, or any other staff member." The Principal required immediate reimbursement and placed a copy of the letter in the Respondent's personnel file. The letter noted that continued noncompliance would result in more serious discipline being imposed. During the 1990-91 school year, Mr. Shearer often relieved the Respondent from the Time-Out room during lunch and planning periods, and had frequent contact with the Respondent. The Respondent was often observed sitting at the desk, his feet up on the desktop, reading a newspaper or book. Occasionally, the Respondent would be eating in the classroom. Additionally, there were complaints from the adjoining school that the Respondent took Time- Out students on walking tours around the other school campus, allowing them to purchase and eat snacks. Mr. Shearer believed the situation to be inappropriate, given that the Time-Out room was directed towards correcting inappropriate behavior, and spoke to the Respondent on several occasions about the situation, but the Respondent apparently did not believe the matter to be a problem. Mr. Shearer also encouraged the Respondent to discuss counseling concerns with highly-regarded staff from other schools and to attend relevant conferences, but the evidence fails to establish that the Respondent took advantage of such opportunities. On January 8, 1991, Principal Shearer completed a guidance assessment form which set forth the Respondent's professional evaluation and performance ratings. The evaluation was reviewed by Shearer and the Respondent on January 18, 1991. The Respondent signed the evaluation. The Respondent's evaluation in the area of "interpersonal relationships" had improved to satisfactory. Mr. Shearer noted that the Respondent still required improvement in the areas of "utilization of time", and "routine office procedures". The Respondent's overall performance rating was not noted. The comments section provided that: Some improvement noted in interpersonal relationships. Paperwork is very weak. Personal phone calls were made again this year on school phone and on school time against my direct instructions. Does not make use of available time with problem students in Time-out or with other students when counseling could be beneficial. Continues to miss entirely too much time from school. Attached to the guidance assessment form were "notices of desired improvement" identifying the improvements expected of the Respondent. The notices provided additional information related to the Respondent's performance deficiencies and indicated that if improvements were required by March 15, 1991 or that the principal would recommend non-renewal of Respondent's employment contract. As to desired improvements in utilization of time, the notice of desired improvement provided: Continues to miss too much time from school. Does not make best use of extended time with problem kids in Time-Out. Does not actively seek out students or opportunities to counsel. Does not adequately follow-up on students referred for counseling....Make school attendance a higher priority. Take the initiative in scheduling students for counseling, those in Time-Out, as well as others who are in need....Keep an active log of students counseled in Time-Out and at other times. Keep a daily "diary" of activities done and students worked with....All necessary forms and papers will be made available. An F.P.M.S. package on "Using Time Efficiently" will be provided. As to desired improvements in routine office procedures, the notice of desired improvement provided: Paperwork is very weak, and record-keeping is almost non-existent. Long-distance personal phone calls have been made on school phones and on school time after direct instructions to the contrary....Record-keeping must be more accurate and more detailed to document work done with and for students. Compliance with directives is mandatory. All calls on school phones will be school related!....Progress will be monitored closely....Assistance will be provided as needed and/or as requested....Notebook with updated forms to be filled out on each student in Time-Out and those counseled otherwise will be provided. Mr. Shearer provided the Respondent with materials appropriate to maintain records on counseling activities. There is no evidence that such materials were utilized or that the Respondent made any effort to address the performance deficiencies noted by Mr. Shearer. On March 26, 1991, Principal Shearer completed a guidance assessment form which set forth the Respondent's professional evaluation and performance ratings. The Respondent refused to sign the evaluation. Mr. Shearer noted that the Respondent required improvement in the areas of "utilization of time", and "routine office procedures". The Respondent's overall performance rating was unsatisfactory. The comments section provided that: Mr. Ellis has made some improvements in his general attitude and has begun to have a little more student contact, but there is still much room for improvement. There are several major areas that are still unsatisfactory. At this time I am recommending that his contract not be renewed for the 1991-92 school year. Attached to the guidance assessment form were "notices of desired improvement" identifying the improvements expected of the Respondent. The notices provided additional information related to the Respondent's performance deficiencies and indicated that the principal was recommending non-renewal of Respondent's employment contract. As to desired improvements in utilization of time, the notice of desired improvement provided: Continues to miss too much time from school. Still spends too much of his school day without direct contact with students. Has not been consistent enough on his follow-up of many of the children referred to him for counseling.... Must make school attendance a higher priority. Must show more initiative in meeting with students having problems. Initial contacts must be followed up and documented on a regular basis....Should meet with teachers on a regular basis to see what students are experiencing difficulties that he might be able to help with....Every consideration will be given to working out student schedules to allow maximum contact time with the Guidance Counselor. As to desired improvements in routine office procedures, the notice of desired improvement provided: Paperwork remains very poorly and sloppily done. Record-keeping is still very sketchy. Record-keeping must be more accurate and more detailed to document work done with students....Assistance will be provided as needed or as requested....Will continue to supply record books, calendars, files, etc. as may be needed to help keep organized and documented. By letter to Respondent dated April 11, 1991, Hendry County School Superintendent Burke informed the Respondent that due to the Principal Shearer's assessment and evaluation, he was being notified that "your performance deficiencies have not been corrected. Further I am notifying you that you shall not be issued a new professional service contract for the next school year." The Time-Out program was continued through the remainder of the 1990- 91 school year, but was thereafter discontinued. Mr. Shearer assessed the program as having been unsuccessful, at least in part due to the lack of interest and negative attitude regarding the program by the Respondent, who believed the program to have been a punitive measure against him by Mr. Shearer. Guidance counselors in the Hendry County Schools are asked to "volunteer" 1/ to assist school officials in obtaining psychological and social histories of students who may be emotionally or environmentally handicapped. The practice is to seek out a counselor who is assigned to the same school as the student. The counselor interviews the child and family, and completes appropriate paperwork containing the relevant information. The forms are not complicated and do not require special expertise to complete. The counselor receives $20 for each complete history taken and $10 to update a previously taken history. The Respondent was asked and agreed to take the history of a specific Westside Elementary School student. Neither the student nor the family spoke English to the extent that the Respondent, speaking only English, would be able to conduct the interview. In such situations, interpreters may be used, but the interview is to be conducted by the counselor. The Respondent did not ask if he could use an interpreter and did not seek approval to give the interview assignment to another teacher. The Respondent asked Rosa M. Santana, a Spanish speaking second grade teacher at Westside Elementary, to perform the interview. He did not offer to compensate her prior to her performing the interview. On or about April 28, 1991, Ms. Santana interviewed the child and family. Ms. Santana took her mother, who speaks Spanish fluently, with her to the interview. The Respondent was not present when the interview was done. Ms. Santana completed the interview form and listed herself as the interviewer. Ms. Santana thereafter returned the interview form to the Respondent. He altered the interview form to identify himself as the interviewer and Ms. Santana as an interpreter. He then submitted the completed form and the bill for $20 to school officials as his charge for taking the student's social history. School officials became aware of the fact that the Respondent did not complete the interview, and paid the money to Ms. Santana rather than to the Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Hendry County School Board enter a Final Order terminating the professional services contract of Aaron Ellis at the end of the 1990-91 school year. DONE and RECOMMENDED this 22nd day of November, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1991.
The Issue The issues presented are whether Respondent's contact with a student during a physical education class on November 14, 2001, violates the terms of previous directives and written reprimands; and whether such conduct constitutes misconduct in office, gross insubordination, willful neglect of duty, or conduct unbecoming a public employee, within the meaning of Florida Administrative Code Rule 6B-4.009(3) and (4), for which Petitioner has just cause under Section 231.36(1)(a), Florida Statutes (2001), to dismiss Respondent from his position as a physical education teacher. (All references to statutes are to Florida Statutes (2001) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact The Orange County School Board (School Board) employed Respondent during the 2001-2002 school year as a physical education teacher, or "coach," at Westridge Middle School (Westridge), pursuant to Section 231.36 and a collective bargaining agreement between the School Board and the Orange County Classroom Teachers Association. Respondent had taught at Westridge in a similar capacity for approximately four or five years before the 2001-2002 school year. On November 14, 2001, Respondent had finished roll call for his physical education class, and students in the class were "dressing out" inside the boys locker room. Another coach had given candy to some students in his class for good behavior. The coach gave Respondent some of the candy to reward students in Respondent's class for their good behavior. Respondent began passing out candy to students in Respondent's class. R.S. was a student in the first coach’s class. R.S. approached Respondent and tried to take some candy from Respondent. Respondent refused to give any candy to R.S., explaining to R.S. that R.S. had already received candy from the other coach. R.S. ignored Respondent's instructions and persisted in his attempt to take candy from Respondent. At that point, R.S. was a disruptive student. Respondent told R.S. to "back off," but R.S. persisted. R.S. put his hands on Respondent's hands and in the candy in an attempt to reach the candy. At the same time, a group of students rushed toward Respondent to receive candy. The group of students were also disruptive. Respondent tried to separate himself from R.S. at the same time that Respondent backed away from the onrushing group of students. Respondent touched R.S. on the shoulder with an open hand and pushed R.S. away from Respondent. Respondent was neither angry nor agitated. The force that Respondent applied to R.S. caused R.S. to take a step or two backward into the adjacent lockers but did not injure R.S. or inflict pain on R.S. R.S. did not fall down. Other students began taunting R.S. They called R.S. a "wussy" and yelled that R.S. had been beaten up by Respondent. R.S. began to cry and left the locker room to get Principal Lorenzo Phillips. The school administration investigated the matter and, on November 27, 2001, relieved Respondent of his duties with pay. On December 17, 2001, Petitioner filed an Administrative Complaint seeking to dismiss Respondent from his teaching position. On November 14, 2001, Respondent faced a disruptive situation. It is undisputed that the situation in the locker room was a chaotic one that involved approximately 40 students in a cramped space. The risk of injury from students falling over each other or over benches in the locker room was great, and Respondent needed to restore order to a disruptive situation. Section 232.27 authorizes Respondent to keep good order in the classroom or other places in which the teacher is in charge of students. Section 232.27(1)(i) authorizes Respondent to use reasonable force to protect himself or others from injury. Respondent had statutory authority to use reasonable force to restore good order in the locker room on November 14, 2001, and to protect himself and others from injury during a chaotic and disruptive situation. The primary factual issue is whether the force used by Respondent for those lawful purposes was reasonable. Petitioner did not comply with the notice requirements in Section 120.57(1)(d) for similar fact evidence based on previous violations. It is undisputed that the force employed by Respondent did not injure R.S. The only evidence that the force used by Respondent was excessive is the testimony of the eyewitness students called by Petitioner. That testimony was inconsistent and less than credible and persuasive. E.S. testified that "everybody started jumping on Coach Packer." E.S. did not see Respondent make contact with R.S. because E.S. really wasn't paying attention. L.P. is a good friend of R.S. L.P. testified that the whole class crowded around Respondent and that Respondent jabbed R.S. with a closed fist from a distance of approximately six inches. However, R.S. did not lose his balance and was not in pain. Respondent is significantly larger and stronger than R.S. E.M. first testified that he did not see Respondent make contact with R.S. but saw R.S. fall on the floor. E.M. later testified that he saw Respondent push R.S. in the side. E.M. testified that he was in the cafeteria at the time rather than in the locker room. F.D. testified that Respondent merely touched R.S. and tried to calm him down. F.D. testified that Respondent applied no force to R.S. R.S. testified that he had his hand in the candy held by Respondent and that Respondent pushed R.S. back. R.S. fell back into the locker behind him. Respondent testified that he put an open hand on R.S. to separate from R.S. and that R.S. stepped back into the locker. R.S. was approximately three feet away from the lockers behind him. As the trier of fact and arbiter of credibility, the ALJ must resolve the evidential conflict regarding the degree of force employed by Respondent on November 14, 2001. Accordingly, the trier has carefully considered the substance of the testimony of the various witnesses, their respective demeanors, their possible biases, and determined the appropriate weight to be accorded to the testimony of each witness. The force used by Respondent to gain control of the situation was reasonable, within the meaning of Section 232.27, and was not excessive. Respondent used reasonable force for a lawful purpose under Section 232.27. The use of reasonable force for a lawful purpose did not violate Management Directive A-4, entitled "Physical, Emotional or Sexual Abuse of Students or Sexual Harassment of Adults by Employees of the School Board of Orange County, Florida." Management Directive A-4 states in pertinent part: No students of the Orange County Public Schools should be subjected to physical, emotional, or sexual abuse by an employee. Therefore, any principal, administrator, or work location supervisor who observes or receives a complaint that a student has been physically, emotionally, or sexually abused by an employee of the School Board of Orange County, Florida shall immediately notify the Employee Relations Department . . . . The force used by Respondent on November 14, 2001, was not abusive. Prior to November 14, 2001, Petitioner had issued three directives and two written reprimands to Respondent for touching students and failing to exercise reasonable care. Respondent did not challenge any of those disciplinary actions. Respondent's use of reasonable force for a lawful purpose on November 14, 2001, does not violate the terms of the prior directives and reprimands. Petitioner issued the first written directive to Respondent on May 18, 1999. The directive instructs Respondent to avoid touching students "except as absolutely necessary to effect a reasonable and lawful purpose." The reasonable force used by Respondent on November 14, 2001, for a lawful purpose complied with the express requirements of Petitioner's directive. The written directive issued on May 18, 1999, also prohibits Respondent from verbally intimidating a student. Respondent's instruction for R.S. to "back off" did not verbally intimidate R.S. R.S. ignored all verbal instructions from Respondent and persisted in his physical pursuit of candy leaving Respondent with little alternative but to physically separate from R.S. The written directive issued on May 18, 1999, also requires Respondent to report any incident immediately to the administration. Respondent did not have time to report the incident to the administration. R.S. reported the incident immediately while Respondent was still responsible for his class. The administration immediately investigated the report from R.S. On October 13, 1999, Petitioner issued another directive to Respondent after a physical confrontation between Respondent and two students. The directive was identical to the first directive except that it added: Touching a student in a manner that serves no educational or lawful purpose may encourage the appearance or use of force. On November 14, 2001, Respondent used reasonable force for a lawful purpose and did not violate the directive issued on October 13, 1999. On October 13, 1999, Petitioner also issued a written reprimand to Respondent, dated October 7, 1999. The written reprimand is effective for five years and states in part: On October 6, 1999, a meeting was held to discuss allegations of misconduct on your part. In that meeting we discussed two physical confrontations that took place between you and your students. In the first case you admitted thumping a student's chest in an incident. In the second incident you admitted to stepping on a student's foot to stop him from running, but could not recall how the student received a scratch on his neck. I am especially concerned about your conduct because you were clearly in violation of directives issued to you in the past. For this reason, this written reprimand is being issued along with a separate letter of directives. I am advising that if there is another confirmed complaint of a similar nature, a recommendation may be made to terminate your employment. The use of reasonable force on November 14, 2001, for a lawful purpose is not a "confirmed complaint of similar nature" within the meaning of the written reprimand dated October 7, 1999. On May 19, 2000, Petitioner issued another directive to Respondent dated May 18, 2000. The directive addressed negligent conduct by Respondent. The wording of the directive was almost identical to the two previous directives issued to Respondent. For reasons similar to those previously stated, the use of reasonable force on November 14, 2001, for a lawful purpose did not violate the directive dated May 18, 2000. On May 19, 2000, Petitioner issued a written reprimand to Respondent dated May 18, 2000. The written reprimand is effective for five years and states in part: This letter shall serve as a summary of our meeting on May 15, 2000, and as a letter of reprimand. In that meeting we discussed an incident in which two students fell to the ground while participating in an activity. You neglected those students in that you failed to determine if they were injured. Furthermore, your disregard was evident in a statement you made to another student when you told the student to "kick them up." It is my conclusion that you were negligent by failing to exercise reasonable care, and that you failed to appropriately perform your duties. I am especially concerned because this is not the first time I have had to issue directives or a reprimand regarding your conduct. I am now advising you that if there is another incident that rises to the level of a discipline. I may recommend your termination. . . . The reasonable force used by Respondent on November 14, 2001, for a lawful purpose was not an "incident that rises to the level of a discipline." The collective bargaining agreement between Petitioner and the Orange County Classroom Teachers Association applies in this case. Article XII of the collective bargaining agreement, entitled "Discipline," states at Section A1: An employee may be disciplined only for just cause, and discipline shall be imposed only for a violation of an expressed rule, an expressed order, an expressed policy or a reasonable expectation of management which should have been known to the employee. The collective bargaining agreement at Article XII, Section A2, further states, in relevant part: Any teacher may be suspended or dismissed at any time during the year, provided the charges brought against him are based on . . . misconduct in office . . ., gross insubordination, [and] willful neglect of duty . . . in accordance with Florida Statutes. Section 231.36(1)(a) applies to this proceeding. Section 231.36(1)(a) provides in part: Each person employed as a member of the instructional staff in any district school system . . . shall be entitled to and shall receive a written contract . . . [that] contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, the following instances, as defined by the rule of the State Board of Education: misconduct in office . . . gross insubordination, [and] willful neglect of duty. . . . The allegations in the Administrative Complaint are limited to misconduct in office, gross insubordination, willful neglect of duty, and conduct unbecoming a public employee. Rule 6B-4.009(3) defines misconduct in office, and Rule 6B- 4.009(4) defines gross insubordination and willful neglect of duty. Case law is the only authority cited by Petitioner to define conduct unbecoming a public employee. Rule 6B-4.009(3) defines misconduct in office as: a violation of the Code of Ethics of the Education profession as adopted in Rule 6B- 1.001, F.A.C. and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006 F.A.C. which is so serious as to impair the individual's effectiveness in the school system. The Code of Ethics of the Education Profession, as set forth in Rule 6B-1.001, in relevant part, requires that: [t]he educator values the worth and dignity of every person. . . [and] [t]he educator's primary professional concern will always be for the student. The Principles of Professional Conduct for the Education Profession are contained at Rule 6B-1.006 and state in relevant part: Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. * * * Shall not intentionally expose a student to unnecessary embarrassment or disparagement. [and] Shall not intentionally violate or deny a student's legal rights. Rule 6B–4.009(4) defines "gross insubordination" and "willful neglect of duties" for instructional personnel. Gross insubordination and willful neglect of duty mean: a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. The use of reasonable force on November 14, 2001, for a lawful purpose did not constitute misconduct in office within the meaning of Rules 6B-1.001, 6B-1.006, and 6B-4.009(3). Respondent's primary concern was for the safety of other students within the meaning of Rule 6B-1.001. Respondent made a reasonable effort to protect his students from conditions harmful to their physical health and safety within the meaning of Rule 6B-1.006. Respondent did not intentionally expose R.S. to unnecessary embarrassment or disparagement or intentionally violate the student's rights. The use of reasonable force on November 14, 2001, for a lawful purpose did not constitute gross insubordination or willful neglect of duties within the meaning of Rule 6B-4.009(4). The use of such force did not violate the terms of any policy memorandum, prior directive, or written reprimand. Conduct unbecoming a public employee is conduct that falls below a reasonable standard or conduct prescribed by the employer. The use of reasonable force on November 14, 2001, for a lawful purpose is not conduct unbecoming a public employee. If Petitioner were to have prohibited Respondent from using reasonable force for a lawful purpose, it would have been an unreasonable standard that violated Section 232.27. The use of reasonable force on November 14, 2001, for a lawful purpose is not just cause within the meaning of Section 231.36(1)(a). The use of such force does not violate the terms of the collective bargaining agreement. Respondent arguably may have used poor judgment in deciding to pass out candy in the locker room on November 14, 2001. His action may have precipitated the chaos in the locker room. However, the Administrative Complaint does not charge either Respondent or the other physical education teacher with poor judgment in passing out candy. The Administrative Complaint is limited to allegations that unreasonable force by Respondent constituted just cause for dismissing Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order finding Respondent not guilty of the acts and omissions alleged in the Administrative Complaint and reinstating Respondent to his teaching position. DONE AND ENTERED this 4th day of November, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 2002. COPIES FURNISHED: Amanda J. Green, Esquire James G. Brown, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Toby Lev, Esquire Egan, Lev & Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802 Ron Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether a district school board is entitled to suspend a teacher without pay for just cause based principally upon the allegation that he slapped a student.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Larry J. Williams ("Williams") had been employed as a teacher in the Miami-Dade County Public School System for approximately 16 years. At all times relevant to this case, Williams was assigned to Parkway Middle School, where he taught students with disabilities. The events giving rise to this case occurred on January 30, 2004. About 20 minutes into one of Williams' sixth grade classes that day, the assistant principal brought a student named J. L. into the room. (J. L. had been roaming the hallways without authorization.) Upon his late arrival, J. L. took a seat, put his head down, and promptly fell asleep. Williams walked over to J. L.'s desk and shook it, asking J. L. if he were all right. Evidently startled, J. L. jumped up and shouted at Williams: "What the fuck are you doing? You ain't my daddy, you black ass nigger," or words to that effect.1 Williams, who is a black man, was taken aback. "What did you say?" he replied. "What the fuck are you bothering me for, you black ass nigger?" answered the student, who was now standing close to Williams. At that point, Williams quickly pushed J. L. away. Williams made physical contact with J. L. and probably touched his face or head. This contact was, it is found, more of a shove than a blow.2 J. L. then left the classroom and went to the office, to report that Williams had hit him.3 After J. L. had left, a student remarked, "Oh Mr. Williams, you [sic] in trouble now." Not wanting to lose control of his classroom, Williams tried to downplay the incident, telling the student that nothing had happened. The undersigned rejects as unfounded the School Board's allegation that Williams told his class to lie about the matter. Before the period was over, the school administration, acting on the word of J. L, a student who less than an hour earlier had been wondering about the halls and hence needed to be hauled into class by an assistant principal, pulled Williams out of his room and sent him home.4 Williams was not allowed to return to work until September 23, 2004. He therefore missed about seven months of school, namely the remainder of the 2003- 04 school year plus the beginning of the 2004-05 school year. For using vulgar language and brazenly insulting Williams with a hateful racial epithet, J. L. was suspended for five days. At its regular meeting on June 16, 2004, the School Board voted to accept the recommendation of Williams' principal that the teacher be suspended without pay for 30 workdays. (This means docking six weeks' worth of Williams' wages, or 12 percent of his annual salary.) Ultimate Factual Determinations Williams did not fail to make a reasonable protective effort to guard J. L. against a harmful condition, in violation of Florida Administrative Code Rule 6B-1.006(3)(a). Williams did not violate School Board Rule 6Gx13-4A- 1.21, which prohibits unseemly conduct and abusive or profane language. Williams' conduct on January 30, 2004, did not entail threats, threatening behavior, or acts of violence. Therefore, he did not violate School Board Rule 6Gx13-4-1.08, which proscribes violence in the workplace. Williams committed a technical violation of School Board Rule 6Gx13-5D-1.07, pursuant to which the administration of corporal punishment is strictly prohibited. This violation was not so serious, however, as to impair Williams' effectiveness in the school system. Accordingly, it is determined that Williams is not guilty of misconduct in office, an offense defined in Florida Administrative Code Rule 6B-4.009(3).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order rescinding its previous decision to suspend Williams without pay; awarding Williams back salary, plus benefits, that accrued during the suspension period of 30 workdays, together with interest thereon at the statutory rate; and directing that a written reprimand for violating the corporal punishment rule be placed in Williams' personnel file. DONE AND ENTERED this 2nd day of December, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2004.
Findings Of Fact The Petitioner herein, the School Board of Duval County, is, in relevant part, the local government agency charged with employing teachers, establishing teacher practice standards by enactment of its own rules, as well as enforcement of the practice standards contained in the Duval County Teacher Tenure Act, cited elsewhere herein. It is charged with enforcing compliance with those professional practice standards. The Respondent, at times pertinent hereto, was a public school teacher licensed by the State of Florida in the area of physical education. He was employed by the Petitioner as a tenured teacher. During the 1988/1989 school year, the Respondent was assigned to teach physical education at Southside Junior High School. The principal of that school, his supervisor, was Dr. Gugel. On March 31, 1989, the Respondent was stopped while driving his vehicle for driving without headlights. Patrol Officer Harbin, of the Office of Sheriff of Duval County, approached his vehicle and, as the Respondent exited the vehicle, he was observed by Harbin to reach back inside the vehicle to place something beneath the front seat. He subsequently appeared to have placed the same items in his jacket pocket. Officer Harbin searched the Respondent's person and found a vial containing what proved to be powdered cocaine. He then searched the inside of the vehicle and found four marijuana cigarettes. The Respondent admitted to the officer that the cocaine and marijuana belonged to him. He admitted to the officer that he had been using illegal drugs for approximately two years. The Respondent was thereupon arrested and charged with possession of cocaine and possession of less than 20 grams of cannabis. Following the arrest, when his superiors learned of it, the Respondent was removed from his classroom duties at Southside Junior High School. The arrest and the underlying factual circumstances leading to it did not occur on or about the premises of any Duval County school or other School Board employment location. They did not involve conduct by the Respondent while engaging in his employment activities as an educator in Duval County. Subsequent to the arrest, the Respondent entered a plea of nolo contendere to a felony charge of possession of cocaine; and the court withheld adjudication of guilt and imposed a sentence of eighteen (18) months probation, including the condition that the Respondent attend a substance abuse rehabilitation program and pay court costs. The substance abuse program attended by the Respondent was at the Jacksonville Rehabilitation Center. At the time he entered the Center, the Respondent did so because the court ordered him to; and, at the time, he felt he did not have a real problem with drugs. His treating therapist testified, however, and established that there is a substantial likelihood that he will remain drug-free in the future after undergoing treatment. The Respondent has agreed to undergo urinalysis for drug testing at such times and as frequently as the Petitioner desires, should he be rehired. Prior to his apprehension by Officer Harbin, the Respondent had been using cocaine and marijuana approximately once every two weeks for the past two years. While he was employed as a physical education teacher with the Petitioner during that two-year period, he had used illegal drugs and admitted that other employees of the School Board had observed him illegally using cocaine and marijuana. Dr. Gugel has been the principal at Southside Junior High School for the past six years. He was principal during the 1988/1989 school year when the Respondent was arrested. Shortly after the Respondent's arrest, Dr. Gugel received information from the personnel department of the School Board of Duval County to the effect that the Respondent had been arrested for possession of illegal drugs. After his arrest, he was removed from the classroom and assigned to work at the media center. This is a non-instructional employment position. Ms. Peggy Williams has been the vice-principal at Southside Junior High School for the past six years, including the year the Respondent was arrested. Both Dr. Gugel and Ms. Williams testified that there has been an active, anti- drug campaign conducted at Southside Junior High School, including the time when the Respondent taught there. Dr. Ragans testified that the intensive anti-drug program at the school is characteristic of the anti-drug campaigns existing on a system-wide basis in Duval County schools. The primary goal of the program is to teach students not to use drugs because of the harmful effects on the students and the fact that it is against the law. The anti-drug program consists of several elements, including, but not limited to, teaching the students the negative effects of using drugs, workshops for teachers to help them identify and help students involved with drugs, as well as workshops for parents related to halting the use of illegal drugs. There is also a joint effort between the schools and the police department to stop the use of illegal drugs in the schools. The parent/teacher organizations have made a strong commitment to inform students regarding the dangers of substance abuse. Students are provided a whole unit of instruction on substance abuse, and the school regularly has guest speakers, through the physical education department itself, to discuss problems associated with substance abuse. There is a committee at the school which regularly plans activities and speakers to inform students as to the dangers associated with using illegal drugs. There are posters throughout the school advising students as to the dangers of drugs and a slogan contest to warn students about drug abuse. The intensive anti-drug campaign leads up to an anti-drug day in May of each year to advise students concerning the dangers of drug abuse. When students are found to have abused illegal substances at school, they are disciplined. Students found possessing drugs at school are not permitted to continue attending that school. The anti- drug campaigns in the schools within Duval County are an important aspect of the professional and educational lives of students and staff members and an important facet of the educational program. The intense anti- drug programs in the school system require teachers to be actively involved in teaching students about the dangers of drug abuse. In order to effectively teach students not to use drugs, it is imperative that a teacher set a good example by personally refraining from the use of them. A teacher who consumes illegal drugs sends a contradictory message to students. A teacher who advocates lawfulness and the harmful effects of drugs and then breaks the laws prohibiting them obviously has a difficult time motivating impressionable students to obey those laws. Teachers serve as role models for the students within the school system, as did the Respondent. In order to effectively advocate substance abuse abstinence, role models are expected to obey anti-drug laws and to refrain from using illegal drugs. Role models who fail to obey laws become ineffective role models. This is especially true of a teacher who acts in the capacity of a physical education or team-sport coach because, as the Respondent himself admits, the position of a coach is a high- profile position in any school; and students often strive to emulate their coaches. Both students and teachers at Southside Junior High School and throughout the school system became aware of the fact that the Respondent was involved with illegal drugs and that he was removed from his teaching position because of his arrest for using illegal drugs. They became aware of this through various news stories which became publicized after the Respondent's arrest. Indeed, uncontradicted testimony established that the Respondent himself had actually discussed the matter with some of his fellow teachers. The widespread knowledge of the Respondent's altercation with law enforcement authorities, and the fact that it was due to illegal drug use, has greatly diminished his effectiveness as a role model. The Respondent has been a very effective physical education teacher and basketball coach. His high level of skill could still be an asset to the Duval County school system; however, his use of illegal drugs and his arrest and sentence for such conduct will certainly diminish his ability to motivate students and to enjoy their confidence and respect, as well as that of his fellow professional teachers and School Board employees. The enjoyment of such confidence, respect and ability as a motivator of students are important elements in the effectiveness of any teacher. That effectiveness has been substantially diminished. Dr. Ragans established that the School Board of Duval County has a policy to the effect that possession and use of illegal drugs is deemed to be immoral conduct. It has a policy of normally dismissing teachers for immoral conduct. It also has a policy for dealing with teachers who come forward voluntarily and admit to a substance abuse problem, voluntarily seeking rehabilitation. These cases are treated differently from the situation where a teacher does not voluntarily admit to a substance abuse problem prior to being apprehended and exposed. In cases where a teacher voluntarily admits such a problem prior to being apprehended and seeks to overcome that substance abuse dependency voluntarily, it is deemed by the Petitioner that a teacher, voluntarily seeking corrective treatment, displays a certain strength of character not exhibited by teachers whose wrongdoing becomes public knowledge as a result of an arrest, before rehabilitation efforts are undertaken. The School Board typically does not dismiss teachers who voluntarily seek rehabilitation. Mr. Walter White testified on the Respondent's behalf in addition to the Respondent, himself. Mr. White was an instructor with the Duval County school system until his retirement in 1985. He hired the Respondent as an employee for the "Red Cap Program" for the summer of 1989. That is a program sponsored by the Jacksonville Private Industry Council. It is not a Duval County school system program, although it is a jointly sponsored effort between the Council and the Duval County school system. This is apparently a summer program with emphasis on recreation. The Duval County school system refers students to the program and they are transported to and from that program by the Duval County school system. The Respondent was hired, subsequent to his arrest, plea and imposition of sentence, in the summer of 1989, to supervise those students, including a significant number from Southside Junior High School. During his employment in this effort that summer, the Respondent supervised students in a satisfactory manner and functioned as a good role model, showing strong managerial skills and motivational talents. He maintained a good rapport with students and was able to motivate them, according to witness White. In the time that has elapsed since the Respondent's arrest and sentence, the notoriety surrounding his arrest and use of illegal drugs has subsided. The Respondent explained that during the period of time he was using drugs, he was undergoing great financial difficulties and marital discord. This has been alleviated greatly because his wife has become employed and they have both been baptized; and, with his wife's guidance, he has redirected his life according religious principles. The Respondent appears genuinely remorseful for the conduct he engaged in which brought about this disciplinary proceeding. He believes, perhaps with some justification, that his effectiveness could be restored or enhanced by his functioning as an example to students of what can occur when one disobeys laws regarding the use of illegal substances. A companion case to the instant proceeding, Department of Education v. Reuben Bernard LeCount, DOAH Case No. 89-3969, has been resolved, after the hearing and before entry of this Recommended Order. The case was heard informally before the Education Practices Commission on March 29, 1990, by agreement of the parties. The Commission imposed a penalty of five years probation, verification of completion of a drug treatment and rehabilitation program, with quarterly reports by a supervisor to the Commission, concerning the Respondent's conduct, and random blood and urine testing at the Respondent's expense. The Respondent was allowed to retain his teaching certificate.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the School Board of Duval County terminating the Respondent as a tenured teacher. DONE AND ENTERED this 5th day of July, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1990. APPENDIX TO RECOMMENDED ORDER CASE NOS. 89-3969 AND 89-4211 Petitioner, School Board of Duval County's Proposed Findings of Fact: 1-5. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter; and the second sentence is rejected, as contrary to the preponderant weight of the evidence. 9-14. Accepted. 15-19. Accepted. 20. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 21-30. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and to some extent, constituting a conclusion of law instead of a proposed finding of fact. Accepted. Accepted. (There are no proposed findings numbered 34, 35 or 36.) Accepted. Accepted. (There are no proposed findings numbered 39 through 46.) Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact: 1-7. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as contrary to the greater weight of the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted, but not itself materially dispositive. Accepted. COPIES FURNISHED: Gail A. Stafford, Esq. Assistant Counsel 421 W. Church Street, Suite 715 Jacksonville, FL 32202 Lane Burnett, Esq. 331 East Union Street, Suite 2 Jacksonville, FL 32202 David A. Hertz, Esq. 1601 Atlantic Boulevard Jacksonville, FL 32207 Dr. Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, FL 32207 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes, against teachers holding Florida educator's certificates. Respondent, who has no prior disciplinary history, holds Florida Educator's Certificate 709850, covering the area of mathematics, which is valid through June 30, 2014. The Events The incident that gives rise to this proceeding occurred during the morning of April 8, 2011, at Dillard High School ("Dillard"), where Respondent has taught mathematics since 2004. At that time, Respondent was lecturing to his Algebra I honors class, which comprised approximately 15 students. During the lecture, one of the male students, 15-year- old D.P., took out his cell phone and viewed it, contrary to one of Respondent's classroom rules. Respondent immediately directed D.P. to put the phone away, and the student complied; a few moments later, however, D.P. again took out his phone, which resulted in the same reaction from Respondent. For reasons known only to D.P., he took out his phone a third time——conduct that prompted Respondent to confiscate the item. Later, during the same class period, D.P. inquired of Respondent as to when his phone would be returned. Respondent replied that the phone could be retrieved at the end of the day from Mr. Levinsky, one of Dillard's assistant principals. None too happy with this turn of events, D.P. stewed for several minutes, at which point he got up from his table and approached the front of the room, where Respondent was seated behind his desk. Suspecting that D.P. might attempt to recover the phone (which lay on Respondent's desk), Respondent picked it up. At that point, and in an audacious move, D.P. grabbed Respondent's cell phone off the desk and stated, in an angry tone, that he would return Respondent's phone when Respondent relinquished possession of his (D.P.'s). Understandably disinclined to negotiate, Respondent calmly directed D.P. to return his property. D.P. refused. Respondent again asked, to no avail, that D.P. place the phone on the desk. After a third request, which, like the others, went entirely unheeded, Respondent stood up, walked around his desk, positioned himself near D.P., and instructed D.P.——for the fourth time——to put down the phone. D.P. complied, only to pick up the phone once again just seconds later. (While doing so, D.P. remarked that he was not going to return Respondent's "mother-fucking phone.") It is at this point that the witness' accounts diverge: D.P. and student S.H. contend that Respondent reached out with one hand and, in an unprovoked act of violence, grabbed D.P. by the throat and pushed him backwards, which resulted in D.P. falling over several desks that had been placed together; students A.A., R.B., and A.P. claim that Respondent, without provocation, slammed D.P. onto the desks after taking hold of the student's throat; finally, Respondent asserts——as corroborated by student T.F.——that D.P. moved toward him in a threatening manner and that he (Respondent) simply defended himself5/ by extending his arm, which made contact with D.P.'s upper chest or neck area. Respondent and T.F. further testified that, as a result of the defensive contact, D.P. moved backward and either tripped or fell over the desks. Before the undersigned resolves the question of how D.P. wound up on the floor, a brief rehearsal of the relevant subsequent events is in order. Moments after the physical encounter, Respondent informed D.P., who was uninjured, that he intended to escort him to one of Dillard's administrators. Enraged, D.P. removed his shirt and followed Respondent into the hallway; as D.P. did so, he directed several vulgar threats toward Respondent, such as, "I'm going to fuck you up" and "I'm going to kill you." Moments later, Respondent encountered one of Dillard's security guards, Noel Buhagiar, from whom Respondent requested assistance. Mr. Buhagiar proceeded to restrain D.P., at which point Respondent made his way to school administration. Once in the front office, Respondent provided a brief description to Mr. Levinsky (as noted previously, an assistant principal) concerning his incident with D.P. Mr. Levinsky instructed Respondent to return to class and issue D.P. a referral. While en route to his classroom, Respondent walked by D.P., who, still restrained, repeated his earlier crude threats. From what can be gleaned from the record, D.P.'s behavior ultimately earned him a five-day suspension from school. Shortly after the incident, Respondent was questioned by Edward Jackson, a school resource officer assigned to Dillard. During the interview, Respondent explained that D.P. had approached him in a "fighter's stance" and that, as a result of this aggressive behavior, he feared for his safety and used an open hand (which made contact with D.P.'s neck) to ward D.P. away. Subsequently, Officer Jackson conducted an interview of D.P. in the presence of Mr. Levinsky and the student's father, during which D.P. provided a description of the incident that largely coincided with Respondent's version of events. These statements were credibly recounted during the final hearing by Officer Jackson, who testified: The child told me, in front of his father, and A.P. [Levinsky], that there was a conversation about a cell phone. He went to get his cell phone back, in an aggressive manner, and that's when [Respondent], fearing for his safety, extended his arms out, and I guess in such force, that he caused the student to fall over some chairs. I then asked, well, Mr. [Levinsky] asked the student, did at any time, did [Respondent] use his hand to choke, choke you. And D.P. answered, to the question, indicating that [Respondent] did not use his hands to choke him. And that was said in front of his father, and in front of Mr. Levinsky, so, there was no choke at all. Final Hearing Transcript, p. 173 (emphasis added). Upon the conclusion of his investigation, Officer Jackson charged D.P. with misdemeanor assault,6/ at which time the matter was forwarded to the State Attorney's Office.7/ Ultimate Findings It is determined, as a matter of ultimate fact, that Petitioner has failed to adduce clear and convincing evidence of the Amended Administrative Complaint's principal allegation—— namely, that Respondent grabbed D.P. in a "choking manner and pushed him onto [a] desk." In so finding, the undersigned rejects the testimony of Petitioner's witnesses on this issue, which, for several reasons, is less persuasive than that of Respondent and T.F. First, had Respondent committed the act alleged, it is reasonable to expect that D.P. would have suffered some form of harm, particularly since Respondent, a football coach, outweighed D.P. by at least 608/ pounds. Yet, and as D.P. conceded during the final hearing, he sustained no marks, bruises, or injuries of any kind.9/ In addition, D.P.'s present description of the event is highly dubious in light of Officer Jackson's credible testimony, which establishes D.P.'s admission during the police interview that he (D.P.) had moved toward Respondent aggressively and that Respondent had merely extended his arm for protection. Finally, D.P.'s wholly outrageous conduct, both before and after the incident——taking Respondent's property and refusing to return it, removing his shirt, and threatening to "kill" Respondent——is far more suggestive of his culpability as the aggressor. Owing to the undersigned's crediting of Respondent's final-hearing testimony, it necessarily follows that Respondent's report of the incident to law enforcement, in which he claimed self-defense, was in no manner false or dishonest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission dismissing the Amended Administrative Complaint. DONE AND ENTERED this 30th day of May, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2013.
